[Federal Register Volume 59, Number 59 (Monday, March 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7234]
[Federal Register: March 28, 1994]
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DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 771 and 785
[Docket No. 940384-4084]
RIN 0694-AA88
Exports to South Africa; Revision of Foreign Policy Controls
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Final rule.
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SUMMARY: With the significant political changes underway in South
Africa, the rationale for prohibiting all exports to South African
military and police entities no longer applies. The controls necessary
to implement the mandatory U.N. arms embargo against South Africa
remain. In addition, restrictions on certain exports to the South
African military and police continue. This final rule amends the Export
Administration Regulations (EAR) by revising the export licensing
policy for exports to South African military and police entities in the
following ways: By clarifying exemptions from general prohibitions on
certain technology and software; by revising policy to permit the
consideration of certain license applications; and by updating the list
of South African military and police entities in the special country
policies and provisions. These changes, while not diminishing U.S.
compliance with the U.N. mandatory embargo against South Africa, and
while maintaining U.S. ability to implement U.N. voluntary controls on
certain exports to the South African military and police, will allow
U.S. businesses to begin to compete with foreign suppliers, who are no
longer bound by similar restrictions in their own countries. Thus,
although it will likely result in an increase in export license
applications submitted, this rule will be generally beneficial to U.S.
exporters.
EFFECTIVE DATE: This rule is effective March 28, 1994.
FOR FURTHER INFORMATION CONTACT: David Schlechty, Office of Technology
and Policy Analysis, Bureau of Export Administration, Telephone: (202)
482-4252.
SUPPLEMENTARY INFORMATION:
Background
In conformity with the United Nations Security Council Resolutions
of 1977 and 1986, the United States maintains an embargo on the export
of arms, munitions and military equipment, and items used in their
manufacture and maintenance to the Republic of South Africa, as well as
on certain items to the South African military or police that have a
military capacity and are intended for military purposes. These
controls continue. Beyond these controls related to U.N. Security
Council resolutions, the United States has also maintained an embargo
on virtually all exports to South African military and police entities.
The recent historic political changes in the Republic of South Africa
argue against the continuation of such global restrictions. This rule
modifies existing controls to allow certain exports to the South
African military and police under an individual validated license. For
example, applications to export food, medicine, or items to meet
emergency humanitarian needs, prevent acts of unlawful interference
with international civil aviation, or counter international narcotics
trafficking will generally receive favorable consideration on a case-
by-case basis. Applications for export of items relating to arms,
munitions, military equipment and their manufacture or maintenance, or
that have a military capacity and are intended for military purposes,
will be subject to either a strict or general policy of denial. All
other exports will be considered on a case-by-case basis.
Regardless of expanded opportunities to export under an individual
validated license, return, repair or replacement commodities may not be
exported under General License GLR at this time. Therefore, exporters
should include an allowance for replacement parts on their original
license applications. Repairs should be arranged in-country when
practical, since GLR will not be available for returning the item to
South Africa after repair elsewhere, and the need for a validated
license could delay the return.
Additionally, this rule clarifies the opportunity to use General
License GTDU for exports destined to South African military and police
entities of sales data that are the minimum necessary to support a
proposal; operation technical data that are the minimum necessary to
operate equipment authorized for export; or software updates (bug
fixes) that do not enhance the capabilities of the initially authorized
package. While such exports have been allowed under the provisions of
Sec. 779.4(e), the availability of GTDU for these shipments was
obscured by Sec. 771.2(c)(11), which broadly prohibits use of general
licenses for exports to South African military and police entities.
This rule clarifies the exemption of sales data, operation data and
software updates from the general prohibitions.
General License GIT may now be used for shipments in transit
through the United States destined to the Republic of South Africa,
provided that the commodities are not related to arms and munitions or
destined for military and police entities.
This rule also updates the list of military and police entities.
This rule adds the company Denel (Pty) Ltd. and certain of its
subsidiaries to the list of South African military and police entities,
and removes Musgrave, a former subsidiary of Armscor, from the list.
Denel was formed from several former Armscor subsidiaries, and produces
a variety of products for the South African military as well as the
civilian population.
Finally, this rule removes remaining restrictions on exports to
Walvis Bay. On February 28, 1994, South Africa returned Walvis Bay to
Namibia.
Rulemaking Requirements
1. This rule was not subject to review by Office of Management and
Budget under Executive Order 12866.
2. This rule involves collections of information subject to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). These
collections have been approved by the Office of Management and Budget
under control numbers 0694-0005, 0694-0007, and 0694-0010.
3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
4. Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule by section
553 of the Administrative Procedure Act (5 U.S.C. 553) or by any other
law, under section 3(a) of the Regulatory Flexibility Act (5 U.S.C.
603(a) and 604(a)) no initial or final Regulatory Flexibility Analysis
has to be or will be prepared.
5. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military and foreign affairs
function of the United States. Further, no other law requires that a
notice of proposed rulemaking and an opportunity for public comment be
given for this rule.
Therefore, this regulation is issued in final form. Although there is
no formal comment period, public comments on this regulation are
welcome on a continuing basis. Comments should be submitted to Hillary
Hess, Office of Technology and Policy Analysis, Bureau of Export
Administration, Department of Commerce, P.O. Box 273, Washington, DC
20044.
List of Subjects
15 CFR Part 771
Exports, Reporting and recordkeeping requirements.
15 CFR Part 785
Exports.
Accordingly, parts 771 and 785 of the Export Administration
Regulations (15 CFR parts 730-799) are amended as follows:
1. The authority citation for 15 CFR part 771 continues to read as
follows:
Authority: Pub. L. 90-351, 82 Stat. 197 (18 U.S.C. 2510 et
seq.), as amended; sec. 101, Pub. L. 93-153, 87 Stat. 576 (30 U.S.C.
185), as amended; sec. 103, Pub. L. 94-163, 89 Stat. 877 (42 U.S.C.
6212), as amended; secs. 201 and 201(11)(e), Pub. L. 94-258, 90
Stat. 309 (10 U.S.C. 7420 and 7430(e)), as amended; Pub. L. 95-223,
91 Stat. 1626 (50 U.S.C. 1701 et seq.); Pub. L. 95-242, 92 Stat. 120
(22 U.S.C. 3201 et seq. and 42 U.S.C. 2139a); sec. 208, Pub. L. 95-
372, 92 Stat. 668 (43 U.S.C. 1354); Pub. L. 96-72, 93 Stat. 503 (50
U.S.C. app. 2401 et seq.), as amended (extended by Pub. L. 103-10,
107 Stat. 40); sec. 125, Pub. L. 99-64, 99 Stat. 156 (46 U.S.C.
466c); E.O. 11912 of April 13, 1976 (41 FR 15825, April 15, 1976);
E.O. 12002 of July 7, 1977 (42 FR 35623, July 7, 1977), as amended;
E.O. 12058 of May 11, 1978 (43 FR 20947, May 16, 1978); E.O. 12214
of May 2, 1980 (45 FR 29783, May 6, 1980); E.O. 12735 of November
16, 1990 (55 FR 48587, November 20, 1990), as continued by Notice of
November 12, 1993 (58 FR 60361, November 15, 1993); E.O. 12867 of
September 30, 1993 (58 FR 51747, October 4, 1993); and E.O. 12868 of
September 30, 1993 (58 FR 51749, October 4, 1993).
2. The authority citation for 15 CFR part 785 continues to read as
follows:
Authority: Pub. L. 90-351, 82 Stat. 197 (18 U.S.C. 2510 et
seq.), as amended; Pub. L. 95-223, 91 Stat. 1626 (50 U.S.C. 1701 et
seq.); Pub. L. 95-242, 92 Stat. 120 (22 U.S.C. 3201 et seq. and 42
U.S.C. 2139a); Pub. L. 96-72, 93 Stat. 503 (50 U.S.C. App. 2401 et
seq.), as amended (extended by Pub. L. 103-10, 107 Stat. 40); E.O.
12002 of July 7, 1977 (42 FR 35623, July 7, 1977), as amended; E.O.
12058 of May 11, 1978 (43 FR 20947, May 16, 1978); E.O. 12214 of May
2, 1980 (45 FR 29783, May 6, 1980); E.O. 12735 of November 16, 1990
(55 FR 48587, November 20, 1990), as continued by Notice of November
11, 1992 (57 FR 53979, November 13, 1992); E.O. 12867 of September
30, 1993 (58 FR 51747, October 4, 1993); and E.O. 12868 of September
30, 1993 (58 FR 51749, October 4, 1993).
PART 771--[AMENDED]
3. Section 771.2 is amended by revising paragraph (c)(11) to read
as follows:
Sec. 771.2 General provisions.
* * * * *
(c) * * *
(11) The exporter or reexporter knows or has reason to know that
the item is for delivery, directly or indirectly, to or for use by or
for military or police entities in the Republic of South Africa. This
includes items for servicing equipment owned, controlled or used by or
for such entities. However, this prohibition does not apply to exports
of sales technical data, operation technical data, and software updates
as described in Sec. 779.4(b)(1), (b)(2), and (b)(3) of this
subchapter; or to generally available software as described in the
General Software Note, Supplement No. 2 to Sec. 799.1 of this
subchapter unless the exporter knows or has reason to know it would
contribute to the manufacture or maintenance of items to which a strict
policy of denial applies under Sec. 785.4(a)(5) of this subchapter, or
to which a general policy of denial applies under Sec. 785.4(a)(6) of
this subchapter. Note that ability to provide sales data does not
confer a presumption that a license will be issued should an order be
received.
* * * * *
4. Section 771.4 is amended by revising paragraph (b)(3) to read as
follows:
Sec. 771.4 General License GIT; intransit shipments
* * * * *
(b) * * *
(3) Commodities destined for the Republic of South Africa that are
listed in Supplement No. 2 to part 779 of this subchapter, commodities
described by any ECCN ending in ``18A'', or commodities for export to
or for use by or for the South African military or police.
* * * * *
PART 785--[AMENDED]
5. Section 785.4 is amended by revising paragraphs (a)(2) through
(a)(6) and by removing paragraph (a)(7) to read as follows:
Sec. 785.4 Country Groups T & V.
(a) * * *
* * * * *
(2) An individual validated license is required for the export or
reexport to the Republic of South Africa of any commodity, where the
exporter or reexporter knows or has reason to know that the commodity
will be sold to or used by or for military or police entities in South
Africa or used to service equipment owned, controlled or used by or for
such military or police entities.
(3) An individual validated license is required for the export or
reexport to the Republic of South Africa of software or technology--
except software or technology generally available to the public that
meets the conditions of General License GTDA--where:
(i) The software or technology relates to the commodities listed in
Supplement No. 2 to part 779 of this subchapter; or
(ii) The exporter or reexporter knows or has reason to know that
the technology or software, or their direct product, are for delivery
to or for use by or for military or police entities of the Republic of
South Africa or for use in servicing equipment owned, controlled or
used by or for these entities, with the following exceptions: (A) Sales
technical data, operation technical data, and software updates as
described in Sec. 779.4(b)(1), (b)(2), and (b)(3) of this subchapter;
or
(B) Generally available software as described in the General
Software Note, Supplement No. 2 to Sec. 799.1 of this subchapter,
unless the exporter knows or has reason to know it would contribute to
the manufacture or maintenance of items to which a strict policy of
denial applies under paragraph (a)(5) of this section, or to which a
general policy of denial applies under paragraph (a)(6) of this
section.
(4) Parts, components, materials, and other commodities exported
from the United States under either a general or validated export
license may not be incorporated abroad into foreign-made end-products
where it is known or there is reason to know that the end product will
be sold to or used by or for military or police entities in the
Republic of South Africa. (See Sec. 776.12(b)(4) of this subchapter for
general exceptions and paragraph (a)(6) of this section for case-by-
case exceptions.)
(5) Applications for validated licenses for arms, munitions,
military equipment and materials, and materials and machinery for use
in the manufacture and maintenance of such equipment, as described in
Supplement No. 2 to part 779 of this subchapter, and related software
or technology, will be subject to a strict policy of denial, in
conformity with the embargo policy set out in paragraph (a)(1) of this
section.
(6) Licensing policy for items not subject to Sec. 785.4(a)(5) that
are destined to or for use by or for the South African military or
police is as follows:
(i) Applications will generally be denied for items described by
any ECCN ending in ``18A''; items that are or will be used to
manufacture or maintain arms, munitions, military equipment, or
paramilitary police equipment; and items that have military capacity
and are intended for military purposes.
(ii) Applications will generally be considered favorably on a case-
by-case basis for: (A) Food and other agricultural commodities;
(B) Medicine, medical supplies, medical equipment, and parts and
components therefor;
(C) Items to be used in efforts to prevent acts of unlawful
interference with international civil aviation;
(D) Items to counter international narcotics trafficking; and
(E) Items to be used to meet emergency humanitarian needs.
(iii) All other applications will be considered on a case-by-case
basis.
* * * * *
6. Supplement No. 2 to part 785 is revised to read as follows:
Supplement No. 2 to Part 785--Interpretations
(1) The Department has received inquiries as to whether certain
entities in the Republic of South Africa are considered police or
military entities and hence subject to the policies set forth in
Sec. 785.4.
(a) In addition to the military and police of the Republic of South
Africa, the following entities are considered to be police and military
entities:
Aeronautical Systems Technology (AEROTEK) Division of the Council for
Scientific and Industrial Research (CSIR)
ARMSCOR (Armaments Development and Production Corporation) and all of
its subsidiaries (including Specialist B Vehicles (SBV), Institute of
Maritime Technology, and Milistan)
Denel (Pty) Ltd. (including the following of its subsidiaries: Advena,
Armatron, Atlas Aircraft, Eloptro, Gennan, Gerotek, Infoplan, Kentron,
Lyttleton Engineering Works (LIW), Mechem, Naschem, Nimrod
International, Overberg Test Range (OTR), Pretoria Metal Pressing
(PMP), Simera, Somchem, Swartklip Products)
Department of Correctional Services
``Homeland'' Police and Armed Forces
National Intelligence Services
Weapons Research activities of the Council for Scientific and
Industrial Research (CSIR)
(b) This list is not necessarily inclusive, and is subject to
change. When dealing with any South African entity, exporters should be
sensitive to the potential for prohibited diversion of their products
to police and military entities, and the potential for illegal use of
their exports in the manufacture or maintenance of arms or related
materials.
Sue E. Eckert,
Assistant Secretary for Export Administration.
[FR Doc. 94-7234 Filed 3-25-94; 8:45 am]
BILLING CODE 3510-DT-P
